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Intercountry adoption: a global problem or a global solution?

"The US is unique amongst developed states in preferring private adoption, a position that Katz associates with the American bias towards market mechanisms and preference for individual autonomy over state regulation.

Adoption involves the legal, permanent transfer of a child from the birth parent or parents to new caregivers. In intercountry adoption, this transfer occurs across an international border. The child usually moves to a new country, to parents of different race, culture and language from the birth family, and acquires a new nationality. The child's new identity replaces his or her original one. Adoption, therefore, it is appropriate to say involves losses as well as gains.

This paper examines the use of intercountry adoption to provide for children in the most disadvantaged conditions. It discusses whether and how international legal instruments and domestic measures can combine to ensure proper standards are applied to such adoptions. (1) In doing so it accepts that intercountry adoption can and should be regulated, rejecting both the alternatives of a free market and a complete ban on adoption. The paper argues that regulatory standards, particularly the control of private adoptions, are required to ensure that abuses such as abduction and trafficking of children are eliminated. Also, as a child welfare measure that has the potential to compromise the human rights of both birth parents and children, adoption should only be used where it is appropriate to the child's situation. Adoption is known to make psychological demands on the parties beyond those of natural parenthood. For this reason, the paper proposes that research knowledge and experience should be applied so that the arrangements made provide the best chance for stable, long-term relationships for children who have been adopted. (2)

ORIGINS OF INTERCOUNTRY ADOPTION

Intercountry adoption came about largely as an altruistic response to the plight of war orphans and the abandoned children of servicemen in World War II, the Korean War and the Vietnam War. It now involves the transfer of more than 30,000 children each year from over 50 countries. (3) With few exceptions, children move from poor countries to wealthy ones. (4) In the main receiving countries--the United States, Canada and most countries of Western Europe--the number of such adoptions has doubled over the last decade. Many factors have contributed to this increase.

In receiving countries, the decline in fertility associated with postponing marriage, the limited success and high cost of infertility treatment and a lack of domestic adoption opportunities have made intercountry adoption an alternative to childlessness. Intercountry adoption has also become easier as information about how it can be achieved has become more readily available, most recently via the Internet.

In states of origin (sending countries), extreme poverty, lack of contraception and attitudes to birth outside of marriage are three major factors leading to the abandonment of children to institutions. (5) In Eastern Europe, social and economic collapse following the end of communist regimes left orphanages close to destitution. Those responsible for these institutions, the welfare organizations that support them and would-be parents in other countries, have all seen intercountry adoption as a solution. In China, the "one-child policy" and the cultural preference for boys have led to the abandonment of large numbers of girls to under-funded and inadequate institutions. In response to these phenomena, organizations have sprung up to facilitate intercountry adoption. For many of these agencies, acting as an intermediary has become a business.

Because of the increase in international adoptions, a new legal regime has been developed. In 1993, the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption was signed to create an international framework for arranging and formalizing these adoptions and to prevent abuses. (6) The Convention relies on cooperation between participating states to safeguard children in the adoption process. States of origin take responsibility for ensuring that children are "adoptable," (i.e. that all the legal requirements have been met) and receiving states take responsibility for the suitability of the applicants; only where both agree that the adoption should proceed can it be finalized. (7) Adoptions are recognized whether they take place in the state of origin or the receiving state. The Convention has now been ratified or acceded to by over 40 countries, including major receiving countries, France, Italy, Spain and the Nordic Countries, and major sending countries, Colombia, Romania and Sri Lanka. (8) So far, the United States, the country that receives the largest number of children, and China and Russia, the countries that currently provide most children, have not joined the Convention. However, in October 2000, then US President Bill Clinton signed the Intercountry Adoption Act of 2000, which will eventually implement the Convention in the US. (9) The following month, China began the process of joining the Convention by signing it at the Special Session in the Hague. (10) Even though only a tiny minority of the world's needy children is involved, preventing abuses and ensuring that intercountry adoption practice promotes children's welfare is a substantial task.

Alongside the development of intercountry adoption, a series of transitions in domestic adoption have taken place during the latter half of the 20th century. Despite differences in the social and legal context of domestic adoption, many countries have faced the same challenges. Networks of adoption specialists have facilitated the flow of ideas within Europe through Euradopt conferences and between the US, the UK, New Zealand and Australia. (11) Transitions have occurred in response to growing professionalism, specialization within welfare services, greater diversity in accepted family units, the move from institutional to family care for children in need, and major reductions in the number of babies relinquished for adoption. Together, these have fundamentally changed the way adoption is organized and the relationships created or legalized by adoption. These developments have implications for intercountry adoption, because they shape understandings of good practice amongst adoption agents and legislators, and because it is widely accepted that equivalent standards and practices should apply to all adoptions. (12)

Adoption was originally based on an informal, private transaction between parents or caregivers and those who wished to adopt. Such arrangements provided no security for children who gained no legal relationship with the adopters and could be rejected or reclaimed at-will. The introduction of adoption laws allowed such arrangements to be formalized, but they continued to be made by mothers directly or through intermediaries. In the UK, often medical staff or church ministers acted as intermediaries; in the US, some lawyers have taken on this role. In many countries, the development of professional adoption specialists, working in licensed adoption agencies, led to controls on intermediaries. (13) The US is unique amongst developed states in preferring private adoption, a position that Katz associates with the American bias towards market mechanisms and preference for individual autonomy over state regulation. (14) Adoption agencies have influenced the most profound change in the way adoption is viewed. In contrast to early adoptions that were focussed on meeting the needs of adults, adoption agencies emphasize that adoption is a "service for children." In the US and the UK, adoption agencies have developed adoption services to provide for children, not just babies and toddlers, including those with disabilities and very adverse, prior experiences.

In the past, private arrangements often meant that those adopting a child were known to the birth mother, but adoption orders concealed details of the child's birth identity. Typically, an adoption certificate replaced the original birth certificate and pre-adoption records were sealed. The intervention of adoption agencies increased secrecy. (15) Adoptions were generally closed in the sense that children had neither contact with their birth family nor access to their pre adoption identity. Nevertheless, from at least the 1960s, adoptive parents were encouraged to raise their children with the knowledge that they had been adopted. In the US, the claims of adopted people for information about their birth identity have not trumped the privacy rights of birth parents; but in the UK, the Children Act of 1975 has allowed adopted adults to obtain details about their birth family. (16) Open adoption with contact between children and their birth families after adoption has become an accepted practice, although contact may be indirect (letters and photos) rather than personal meetings. (17) Increasingly, adoption agencies are providing post-adoption services such as support for adoptive parents in coping with the challenges of adoption and the counselling of adopted people. (18) They also help to assist people to trace their birth relatives, to mediate contact and to support birth parents.

Race has been another major issue in adoption. Until the mid-1960s, black children and those of dual heritage were rarely placed for adoption in the UK. (19) The British Adoption Project showed that placements could be found for such children in white families, and trans-racial adoption developed. (20) In the 1980s, black social workers criticized this practice for failing to value and maintain cultural identity for black children and for failing to prepare them to deal with the racism of British society. Adoption agencies began to develop policies on same race placement, but these too were criticized because they risked denying black children the advantages of adoption. The Department of Health issued guidance emphasizing the importance of children's ethnic, cultural and religious identity but also making the case for achieving family placements without long delays. Where same race placements were not found, adoptive families who would make and support links with the child's community were better than temporary or residential placements. (21)

THE CONTESTED NATURE OF INTERCOUNTRY ADOPTION

Three value positions can be identified in discussions about intercountry adoption: abolitionists, pragmatists and promoters.

Abolitionists have focused on the negative impact that intercountry adoption can have on child welfare systems in sending countries, despite the relatively small numbers of children involved. They stress that intercountry adoption diverts professional resources (social workers, lawyers and courts) from the needs of many children to service a few foreign applicants. Abolitionists argue that if the money spent on adopted children was applied to children's services in sending countries, the lives of large numbers of children could be improved. (22) Abolitionists portray intercountry adoption as undermining the development of better local services, particularly if local adopters are measured against the material standards of foreigners. (23) They are concerned about the neo-colonialism and ethno-centricity inherent in decisions whereby children are adopted "in their best interests" from poor, emerging states into rich, powerful countries. In addition to questioning the impact on the well-being of those adopted, they remain concerned about the effect of seeing the export of children as a solution to a country's child care problems.

For abolitionists, the adverse impacts of intercountry adoption are not limited to sending countries. If prospective adopters prefer healthy foreign babies to local children who need adoptive families, intercountry adoption may also prevent the development of domestic adoption for hard to place children. Their opposition to intercountry adoption is also based on concerns about abuse, particularly abduction and coercion, to meet demands for children, and the way that accepted practices, such as requiring donations to orphanages, can easily develop into corruption, possibly even the selling of children.

In contrast to abolitionists' views about the impact on children and society generally, the promoters emphasize the way that individual children can be helped by intercountry adoption. They see intercountry adoption as "an ideal solution bringing together parents with homes, love and care to offer and children who (desperately) need families." (24) For promoters, the problems of intercountry adoption are associated with too much bureaucracy which restricts the number of families who can be assisted, increases the time taken to arrange adoptions, encourages the avoidance of formal procedures and allows the exploitation of adopters. Although there are organizations who both seek to promote intercountry adoption and to see it closely regulated, promotion is more usually associated with the rejection of controls and acceptance of the notion that, like natural parents, those seeking to adopt should not be subject to assessment or restrictions.

Pragmatists accept the need for regulating intercountry adoption as a way of eliminating abuses and improving standards in a practice that will continue. The acceptance of intercountry adoption in limited circumstances, combined with a belief that it can be controlled, led to a range of unilateral, bilateral and international statements and measures, particularly the development of the Hague Convention on Intercountry Adoption, that are intended to improve practice in intercountry adoption. (25) The preamble to the Convention endorses the value of family upbringing, the obligation of states to give priority to birth families and the advantages of intercountry adoption where other family care is not available. But it acknowledges that measures are required to ensure decision-making in the child's best interests, the respect of the child's fundamental rights and the prevention of abduction, sale and trafficking. Pragmatists accept that legislation alone will not raise standards. New practices will have to displace existing ones, challenge the beliefs of applicants, agencies, the judiciary and immigration services, and focus the attention of governments. Professor William Duncan, Deputy Secretary General of the Hague Conference, has stressed that the Hague Convention is only a "secure framework" and a long process will be required to make it work effectively. (26) The Hague Convention is being promoted by international bodies, the Council of Europe, the EU and the UN Children's Rights Committee as the means for improving standards in intercountry adoption. (27)

ELIMINATING ABUSES

The goal of eliminating abduction, sale and trafficking takes a narrow approach to abuses and applies only the lowest standards for the protection of children, parents and intending adopters. It does not ensure that each party is treated with respect, or that any adoption achieved best meets the needs of the child. The Hague Convention only works against abuses indirectly; it is not an international criminal code. (28) It expects that observance of the Convention "will bring about the avoidance of such abuses." (29) The enactment and enforcement of laws regulating adoption is a matter for the competent authorities in each contracting state. The central authority must be notified of any breach and has responsibility for taking all appropriate action, for example informing other central authorities. (30) If a sending country is concerned about poor standards in a particular receiving state it could refuse to accredit agencies seeking to send children to that state. Similarly, a receiving state could refuse to accredit agencies arranging adoptions from a particular sending state. States that have ratified the Convention do not have to apply it in their dealings with non-contracting states and are not precluded from receiving children from them, even when they are aware that the standards of practice are unacceptably low or that abuse is rife.

Where would-be adopters have avoided official procedures because of ignorance or complexity, the availability of good information and clear procedures is likely to increase compliance. This is the approach taken most recently by the Department of Health in the United Kingdom. It supported the development of a telephone helpline and provides a website which details the procedures to be followed and the payments required by those seeking to adopt from 23 countries that have provided children for adoption in the UK. (31)

The elimination of the adoption trade, however, is more difficult where practices have become accepted and formed a part of the childcare economy. Adoption services--social work assessments (home studies), legal advice and representation and the care of children pending adoption--involves costs. In domestic adoption, such costs may be met from government or charitable sources, or by payments from the adopters directly; in intercountry adoption these costs generally fall on the applicants. Although such payments may appear quite distinct from payment for the child or for the adoption, there is room for confusion: a payment for a home study may become payment to be approved as an adopter; financial support enabling a mother to keep her other children may appear as compensation for loss of the child or reward for her agreement; and further, the payment to the orphanage for the child's care may not reflect local care costs but support other orphans and encourage those in charge to support adoption. (32) Also, without such income, orphanages may not be able to maintain even basic standards. Even limits on reasonable expenses may not help applicants know how much they should pay in the child's state of origin or for what reasons, particularly where payments to officials to expedite processes are culturally accepted.

International instruments have generally rejected commercial activity in intercountry adoption. The 1986 Declaration of the UN states that, "In no case should placement result in improper financial gain for those involved in it." (33) The Euradopt Ethical Code requires the fees charged to be commensurate with the work carried out and those working to be paid reasonable salaries not linked to the number of cases. (34) Similarly the Hague Convention requires central authorities in each State to take "all appropriate measures to prevent improper financial gain" (35) and requires "accredited bodies" (36) to pursue only "non-profit objectives." (37) The European Parliament has called for private arrangements to be replaced by a compulsory system undertaken by "duly accredited non-profit making organizations under public control." (38) Although adoptions carried out by such bodies cannot be guaranteed free from abuse, the worst and most frequent problems arise in the context of private adoptions, which are used, at least in part, to avoid the restrictive procedures of organizations, including by some people who have been rejected by reputable agencies. UNICEF regards private adoptions as high risk (39) and the Committee on the Rights of the Child has been particularly concerned about them. (40)

The Hague Convention has taken a slightly more lenient approach to adoption commerce. Although "no one shall derive improper financial gain" from intercountry adoption and "only cost and expenses, including reasonable professional fees ... may be charge or paid," the Convention does not restrict adoption activity to public bodies or non-profit organizations. (41) Following a report that most countries permitted adoptions not arranged through agencies,(42) the Special Commission accepted "a reasonable compromise" (43) to allow the use of private intermediaries where the authorities in both the sending and receiving country accept this practice. Article 22 allows a State to permit suitably qualified intermediaries, who are not required to be in the non-profit sector, to make arrangements for adoption. Even reports on the suitability of the applicants or on the adoptability of the child can be prepared by intermediaries, but final responsibility remains with the central authority or an accredited body. (44) This reflects the desire of the drafters of the Convention to enhance the potential for its wide application by avoiding barriers to ratification in any of the major sending or receiving countries. The notion that good practice will necessarily drive out bad is problematic. (45) Thus the success of the Convention--wide application--may be its ultimate failure if it facilitates risky, private adoptions and leads to their general acceptability.

The Second Special Commission reconsidered the issue of payments in adoption because of "serious concern surrounding some of the cost, charges, contributions and donations involved." (46) It recommended that accreditation should require proof that the agency has adequate resources and the prior disclosure to prospective adopters of COSTS. (47) In relation to donations to orphanages and payments for the development of child care services, the Special Commission was divided between those who considered that no such payments should be allowed and those who regarded such payments as legitimate but wanted clear safeguards to prevent abuse. The Commission established a compromise based on the acceptance of the importance of both developing child protection services and preventing payments influencing decisions about adoption. (48) Such distinctions may be difficult to maintain in practice unless the payment and receipt of donations are completely separated from any decisions about individual children, facilities or agencies.

The case for limiting work in intercountry adoption to accredited agencies is strengthening in Europe and in some sending countries. In the Netherlands, applicants must use one of six organizations that have been licensed by the government to mediate in adoption. (49) In Denmark and Norway all intercountry adoptions are arranged through agencies which are members of Euradopt. (50) Private adoptions are permitted in Sweden but they have to be approved by the National Board for Intercountry Adoptions and account for only seven percent of the total number of adoptions in the country. (51) In the UK only licensed adoption agencies can place children for adoption. (52) Attitudes amongst adoption specialists and government officials inhibited the development of agencies providing a full service in intercountry adoption, (53) but four voluntary agencies have now been approved to provide advice and undertake assessments. (54) Local authorities are required to provide assessments and support to applicants for overseas adoption, (55) and it is an offense to arrange a private home study report (56) or to bring a child to the UK for adoption without complying with the formal procedures. (57)

India only permits adoptions to be arranged through agencies. British applicants may, however, travel to India and apply directly to an Indian adoption agency providing they have obtained the necessary approval from their local authority and the Department of Health. The placement is then made in India but the adoption must be finalized in the UK.

In addition to provisions about consents and payments, (58) the Hague Convention seeks to prevent abuse by prohibiting contact between the prospective adopters and the child's parents before the child has been declared adoptable, consents have been given and the adopters have been approved. (59) Exceptions are allowed for in-family adoptions, where it is impractical to forbid it. Where professional agencies oversee adoption arrangements, pre-adoption meetings between parents and prospective adopters can meet the parents' need to know who will raise their child and allay the fears of both parties. (60) However, pre-identification in intercountry adoption has been associated with improper pressure on parents to consent and child trafficking. (61) There is no restriction on contact by an intermediary, even though the risks of pressure may be greater where substantial fees can be earned by facilitating an adoption.

Even where abuse is clear and there are evidence that a child has been purchased, concern for the well being of the child may lead the breach to be disregarded. In Britain, payments are strictly regulated. It is a criminal offence to make, offer or receive any payment for adoption of a child except to a licensed adoption agency for "expenses reasonably incurred." (62) Court orders cannot be made where there has been an illegal payment. (63) However, the High Court has asserted its power to approve adoptions where arrangements have been made for payment on the basis that the welfare of the child requires it. (64) Without adoption, the child's status and immigration rights may be uncertain; the importance of securing the child's relationship to the only carer he or she knows is regarded as overriding the need to maintain the integrity of adoption processes. (65)

THE SUBSIDIARITY PRINCIPLE

The subsidiarity principle is the key to making intercountry adoption a service for children rather than for prospective adopters. It prioritizes care of the child in the family of origin before all other arrangements and relegates intercountry adoption by unrelated carets behind appropriate care in the child's home state. Although the principal of subsidiarity has been accepted since the 1986 UN Declaration, (66) different instruments have given other emphases to intercountry adoptions.

The 1986 Declaration clearly prioritized care by the child's parents, but made no apparent distinction between other forms of substitute care, including institutional care. Articles 21 of the UN Convention on the Rights of the Child prioritizes care in the child's state of origin over intercountry arrangements and qualifies other care with the term "suitable." "States Parties ... shall recognize that intercountry adoption may be considered as an alternative means of the child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin." (67) The Euradopt code is similar but more direct. The organization considering intercountry adoption for a child "must be satisfied that no other satisfactory solution" could be found in the child's country of origin. (68) The European Parliament resolution emphasizes the right of the abandoned child to be adopted and discounts institutional care. It also restricts intercountry adoption to cases "where it is impossible--even if appropriate means and economic assistance is provided--for the child to remain in its family of origin ... or a foster family in the same country." (69)

The Hague Convention, whilst giving priority to the child's family, recognizes "that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in the country of origin." (70) In doing so it appears to prefer any family to an institution, and adoption overseas to a family in the child's own country whose suitability may be in doubt. (71) Prioritizing families over institutions accords with understandings about young children's developmental needs and reflects understandable concern about the quality of institutional care in many, but not all, sending countries. This policy is more controversial when applied to older children who may not want, or be able to cope with, the emotional demands of family life. (72) Older children also face greater difficulties in adjusting to a new culture and language and they may present problems which adoptive parents are unable to accept. (73) Despite the subsidiarity principle, intercountry adoption may take priority over care when the mother is herself a child. For example, in the Philippines, pregnant girls taken into state care because of sexual abuse cannot keep their babies with them. If relatives are unable to provide care, the Department of Social Welfare may approve intercountry adoption plans.

The subsidiarity principle is only meaningful if organizations considering the appropriateness of adoption can access services to support care in the child's family or facilitate other arrangements within the state of origin. Such services are only likely to be available to public authorities or organizations that are not narrowly focussed on adoption work. Intermediaries in the adoption business are poorly placed to find and promote alternatives. The subsidiarity principle should mean that children who can most readily be cared for in the state of origin--those with good health and without disabilities--remain there. However, healthy babies are also the ones most likely to be sought after by prospective adoptive parents overseas, and therefore tend to be the focus of attention of intermediaries.

If intercountry adoption is to take its place as an option of last resort for the care of children who cannot receive suitable care, far more will need to be done in states of origin to prevent abandonment, to develop a range of child care services and to improve the quality of institutional care. Organizations that work narrowly in the field of intercountry adoption are in a poor position to do this. The use of quotas for adoption is essentially arbitrary and would not ensure that it was used appropriately. Rather, those engaged in intercountry adoption work should be under an obligation to reduce the need for intercountry adoption by developing services in the country of the child's origin to support families, provide substitute care and encourage the integration of orphans into the community. Agencies working in all these areas should be monitored with the expectation that they show year to year improvements in this work. Financial support and expert assistance should be found from the international community and should never be limited only to support for intercountry adoption. At present, priority needs to be given in many sending countries to ameliorating institutional care in order to ensure the development of children placed in these institutions. In-country family placement is more likely to be available for healthy, well-developed children, but resources will be required to create or increase programs for their care.

BEST CHANCE ADOPTIONS

Research into both domestic and intercountry adoption over the last 25 years has provided a good foundation for recognizing the challenges that adoption poses for children and their adoptive parents, and what can be done to overcome them. (74) Much knowledge about adoption is restricted to practitioners and those with direct experience; would-be adopters need to know more before they decide whether they want to adopt. (75) The emphasis on meeting the child's needs makes it particularly important that prospective adoptive parents can focus on the children for whom intercountry adoption is sought, not just on their ideal child. Also, prospective adoptive parents need to give proper consideration to the impact on each adopted child, giving him or her time to settle before arranging further adoptions.

Lack of information on procedures in the UK has also been associated with failing to follow the official procedures. (76) In Western Europe, organizations of adopters have been an important source of information and advice on intercountry adoption. (77) Adoption agencies there go beyond simply providing information; they also provide formal preparation classes. In the UK, such classes have been a usual part of the assessment process in domestic adoption for some time and, in keeping with the principle of equivalence in standards for all adoptions, (78) are now being extended to intercountry adoption. (79) In the Netherlands, attendance at six, three-hour preparation classes is mandatory for those seeking intercountry adoption.(80) As the impact of institutionalization on children is recognized and intercountry adoption develops to include children with special needs, the preparation of adoptive parents becomes an important part of ensuring that applicants can successfully care for the child placed with them.

Written information and preparation classes are not the only way for the would-be adoptive parents to develop knowledge and understanding about intercountry adoption. Public authorities and agencies in some sending countries require adopters to visit and collect the child personally. (81) A member of the Philippines Intercountry Adoption Board explains that this as an important part of understanding the child's cultural background. (82) Such arrangements can help to ensure a more sensitive transfer for the child, who might otherwise travel across the world to an unknown destination in the company of a complete stranger. Increased awareness about the needs of children in sending countries has been associated with the development of agency programs to support children in their own countries and to place children with special needs rather than babies via intercountry adoption. (83) In some sending countries--notably India--agencies licensed for intercountry adoption are required to provide a wide range of in-country services, including adoption. The Central Adoption Resource Centre (CARA), the body responsible for licensing Indian Agencies and endorsing agency's adoption recommendations, sets a quota requiring at least 50 percent of children in an agency's care to be placed for domestic adoption. (84) While the number of Indian children placed in intercountry adoption has remained fairly constant, domestic adoption has increased four-fold. (85)

Agencies in receiving countries need to be aware of the general conditions for children in sending countries as well as their culture, laws and practice. It is unrealistic for agencies to work in more than a few countries if they are to have a detailed knowledge of and good working relationship with sending countries and the relevant agencies involved. Similarly, agencies in sending countries need to be aware of the conditions in the countries where children are being sent. Where strong links are made between agencies and countries, adopters and children are more likely to be able to share their experiences with others. This can alleviate the isolation that people adopted outside their country of origin can feel. (86)

Many of those who have been adopted want to have information about their birth families. This is crucial to their identity and should be protected as part of their identity under Article 8 of the UN Convention on the Rights of the Child. In intercountry adoption, the child's right to an identity, which includes their birth identity, can be difficult to satisfy because of the limited information available where children are abandoned, the reluctance to disclose information, and the less developed administrative systems (for example, for birth registration). The extreme stigma associated with a birth outside of marriage, which frequently ensures that children are available for adoption, restricts the information that is given by mothers and makes privacy crucial to their safety. Consequently, adoption laws in many sending countries guarantee secrecy. The Inter-American Adoption Convention allows only the passing of non-identifying information but the Hague Convention has gone much further in seeking to make information available for adopted people without creating barriers that might make states of origin unwilling to ratify. (87)

Under the Hague Convention, the central authorities in a sending country must collect information about the child's background and transfer it to the central authority in the receiving state. (88) Both must preserve this information. No time limit is imposed so it is a matter for each state to decide for how long information will be kept. (89) Access to the information (which may be via a representative) is determined by the law of the state holding it. (90) This appears to ensure equal treatment for all adoptees within a state, but, in practice, for the reasons discussed above, intercountry adoptees are unlikely to find out about their origins. If information is kept indefinitely, the possibility remains that laws will be liberalized and access will be permitted, as occurred in England and Wales in 1976. (91) Again, it is the attitudes and practices of those arranging adoptions that are likely to determine the amount and quality of information provided.

European agencies have been instrumental in providing post adoption support to intercountry adoption families. As well as providing telephone counselling, Nordic agencies have established groups for children from different countries, arranged visits to children's countries of origin and assisted young adoptees to take part in summer camps in their adoptive or original country with groups of other adopted people. (92) All these activities can help adoptees and their families keep hold of and value their special identity. Self-help groups can arrange such programs, without the intervention of agencies. However, it is more difficult to make contact with and offer services to parents and children when the adoptions have been arranged independently. Far more needs to be done. Although adopted children can be given a window into their cultural heritage, unless they also acquire the language of their birth mother, their access to that heritage and to members of their birth community is severely restricted.

CONCLUSION

The Hague Convention sets out a framework for intercountry adoption and provides for its implementation through central authorities. The speed and scale of ratifications by both countries of origin and receiving countries suggests that the Convention will be a major influence on intercountry adoption practice. The suitability and success of arrangements for the adoption of individual children is dependent on the assessment, preparation and support of prospective adopters and the children who are placed with them. By allowing this work to be undertaken by intermediaries for profit, the Convention risks the continuation and institutionalization of adult-centered adoption practices.

Improving intercountry adoption and ensuring that it plays its proper role among all child welfare solutions is dependent on both an adequate legal framework and adoption professionals who can center the interests of the child. Organizations working in adoption need to make a long-term commitment to the children whose adoptions they arrange, the adults who adopt them and the parents who relinquish them. Adoption is a process that has life-long implications; those directly effected may need support many years after the change of legal status has been finalized. Individual intermediaries and small organizations are unlikely to have the resources or the staying power to make such a commitment, nor is it easy to ensure that others will take on this work if they close. Adoption overseas is only one option to improve the care of children. The best arrangements can only be made for individual children if those working for their future can access a range of services, not just adoption. Organizations working on intercountry adoption need the capacity to develop sponsorship and other programs in states of origin or to work in partnership with others providing such services.

Past and current practice strongly suggests that good practice is more likely to be achieved by public bodies and well-regulated non-profit agencies than by intermediaries in the business of adoption. It is the need to ensure good practice where adoption is only one of a number of options and the support of adoption without limit of time that makes agencies more appropriate to take responsibility for this work than individuals. Agencies are not a panacea; they too have been associated with poor practice. However, placing agencies in competition with market operators is likely to reduce rather than raise standards to the detriment of children, birth parents and would-be adopters. Increasing the demand for adoption, by increasing the number of people who arrange adoptions, or allowing profit to motivate their work, does not increase the number of children for whom adoption overseas is the best solution. There is no evidence that higher charges for adoption reflect greater preparation of adopters or support following adoption. Rather, it appears that higher fees may be charged by those who can satisfy the applicants' needs, particularly applicants rejected by other agencies.

Accreditation standards are crucial. Their acceptance by agencies and their monitoring by competent authorities can ensure that children, biological parents and prospective adopters are treated with respect and that the needs of the child are given the highest priority. Both sending and receiving countries can be more thorough if they have only relatively few organizations to accredit. It is also important that all those involved in arranging intercountry adoption are clear about their responsibilities and the procedures that they should follow. Clarity about responsibilities and defined procedures can help eliminate delays and make abuses easier to detect. Bilateral arrangements between countries where good understandings develop between accredited bodies and central authorities may make this easier to achieve. However, high standards of practice will remain heavily dependent on the ethos of those providing intercountry adoption services. Children's well-being is dependent on their understanding of children's needs and the agencies' willingness to work for them in the face of demands from parents, would-be adopters, child care organizations and governments.

(1) The Guidelines of the International Council of Social Welfare (1981); UN Declaration on Social and Legal Principles relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption Nationally and Internationally (1986); UN Convention on the Rights of the Child, Article 21 (1989); Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (May 1993); Euradopt, Ethical Rules (1993), available at www.euradopt.org/ethical roles; European Parliament, Resolution on improving the law and co-operation between member states on the adoption of minors (1996) A4-0392; Council of Europe, Parliamentary Assembly Recommendation 1443 (2000).

(2) There is a voluminous research literature on adoption. Key works include D. Kirk Shared Fate (London: Free Press, 1964); J. Triseliotis, In Search of Origins (London: Routledge and Kegan, 1973); M. Ryburn, Open adoption: Research, Theory and Practice (Aldershot: Averbury, 1994); D. Howe, and J. Feast, Adoption, Search and Reunion: the Long Term Experience of Adopted Adults (Chichester, UK: The Children's Society, 2000). For a general overview of adoption in the UK, see R. Parker, Adoption Now: Messages from Research (Canada: Wiley & Sons, 1999).

(3) P. Selman, "The Demographic History of Intercountry Adoption" in P. Selman, ed., Intercountry Adoption (Whitaker: British Association for Adoption and Fostering, 2000) pp. 13-39. Comprehensive statistics are not available but details can be found from UNICEF at www.unicef-icdc.org and the National Adoption Information Clearinghouse at www.calib.com/naic.

(4) See Selman, n. 3, tables 1.8 and 1.9. South Korean is the only state that provides a large number of children for intercountry adoption with a per capita GNP above $10,000. It is apparent that the USA which receives the most children for adoption from overseas also provides children for adoption in the U.K. as in the notorious Kilshaw case and in Re JS (private international adoption) [2000] 2 F.L.R. 638.

(5) These were the same factors that led to the development of domestic adoption in the United Kingdom, Australia and the USA in the 20th century. For a discussion of the position in England during that period see D. Howe, P. Sawbridge, and D. Hinings, Half a Million Women (New York: Penguin, 1992).

(6) 32 I.L.M. 1134; www.hcch.net/e/conventions.

(7) Hague Convention, articles 4, 5 and 17.

(8) The U.K. has signified its intention to ratify and passed the Adoption (Intercountry aspects) Act 1999 but has not fully implemented this new law.

(9) Intercountry Adoption Act of 2000, 106th Cong., H.R. 2909.

(10) Report and Conclusions of the Special Commission (28 November/1 December 2000), para. 6.

(11) For example, BAAF (British Agencies for Adoption and Fostering, the British umbrella group for adoption agencies) regularly invites U.S. adoption experts to give seminars in the U.K. Similarly, Dr Murray Ryburn disseminated New Zealand experience in open adoption in Australia and the U.K.

(12) UN Convention on the Rights of the Child, article 21(c). Only Somalia and the USA have not ratified the UNCRC but a number of countries have entered reservation in relation to art. 21. For example Argentina has added `strong mechanisms are required for the legal protection of children in matters of intercountry adoption in order to prevent trafficking in and sale of children.' In contrast, Korea considers itself not bound by art 21(a). A number of Islamic states reject provisions on adoption because of conflict with Shariah. See www.unhchr.ch and A. Bissett-Johnson, "Qualifications of Signatories to the United Nation Convention on the Rights of the Child" in N. Lowe, and G. Douglas, Families Across Frontiers (Bowker: Martinus-Nijhoff, 1996) pp. 115-133. In the UK, BAAF has endorsed equivalence in its 1998 police statement on intercountry adoption. For further details contact www.BAAF.org.uk.

(13) See J. Van Loon, "Report on Intercountry Adoption," Hague Conference on Private International Law (1990) p. 38. In England, non-agency placements were made illegal by the Adoption Act 1958 and direct placements by parents with strangers were barred by the Children Act 1975. See R. Sandland, "Problems in the criminal law of adoption," JSWFL (1995) pp. 149-166.

(14) S. Katz, "Dual Systems of Adoption in the United States," in S. Katz, J. Eekelaar, and M. Maclean, Cross currents (2000) pp. 279-306, 284.

(15) M. Ryburn, "Secrecy and Openness in Adoption - an Historical Perspective" Social Policy and Administration, 29 (1995) pp. 150-168.

(16) s. 26; now Adoption Act 1976, s. 51. Scots law allowed access to birth records from age 17 enabling the highly influential study by J. Triseliotis, In Search of Origins (1973).

(17) N. Lowe, et al., Supporting Adoption - Refraining the Approach (trade paper, May 1999); Social Services Inspectorate, `Moving goalposts' A study of post-adoption contact in the North of England (1995) Department of Health.

(18) The proposed new law for England and Wales, the Adoption of children bill 2001, cl.2(2) makes the provision of adoption support services a statutory obligation for all local authorities with social services functions (county councils, unitary authorities and metropolitan boroughs).

(19) For a discussion of the ideological issues see P. Hayes, "The Ideological Attack on Transracial Adoption," Int J Law and Fam (1995) pp. 1-22. For a broader discussion of the issues and the research see J. Thoburn, Review of Research Relating to Adoption (Interdepartmental Review of Adoption, Background paper No. 2) (1990) and Adoption and Race (Whitaker: BAAF, 2000).

(20) O. Gill, and B. Jackson, Adoption and Race (New York: St. Martins, 1983). The British Adoption Project ran from 1965 to 1969.

(21) Department of Health, Children Act 1989 Regulations and Guidance, Vol. 3 (1991) paras. 2.40-2.42; D.H. Circular CI(96)4, Adoption, (1996) paras. 13-15; D.H. Circular LAC(98)20, Adoption: Achieving the Right Balance (1998). Department of Health circulars are available from www.dh.gov.uk.

(22) J. Triseliotis, "Intercountry Adoption: Global Trade or Global Gift?" Adoption and Fostering, 24:2 (2000) pp. 45-54; D. Ngabonziza, "Moral and Political Issues Facing Relinquishing Countries" Adoption and Fostering, 15:4 (1991) pp. 75-80.

(23) S. Hoelgaard, "Cultural Determinants of Adoption Policy: a Colombian Case Study," 12 Int J Law, Pol and Fam (1996) pp. 202-241.

(24) D. Kirton, "Intercountry Adoption in the UK Towards an Ethical Foreign Policy?" in P. Selman, pp. 66-85, 74.

(25) Van Loon and G. Parra-Aranguren, "Explanatory Report on the Convention on Protection and Co-operation in Respect of Intercountry Adoption," Hague Conference on Private International Law (1993).

(26) W. Duncan, "The Hague Convention on the Protection of Children and Co operation in respect of Intercountry Adoption," in P. Selman, supra note 3, pp. 40-53.

(27) European Parliament, Resolution on Improving the Law and Co-operation Between Member States on the Adoption of Minors (1996) A4-0392; Council of Europe, Parliamentary Assembly Recommendation 1443 (2000). The UNCRC consistently urges States involved in intercountry adoption to ratify the Hague Convention.

(28) see Parra-Aranguren, paras. 52-55.

(29) Parra-Aranguren, para. 52.

(30) Articles 7, 33. A proposal from Australia that would have allowed states to suspend the operation of the Convention in relation to other contracting states that were failing to operate its standards was rejected. See Parra-Aranguren, paras. 539-540.

(31) www.dh.gov.uk/adoption; see also G. Haworth, "Overseas Adoption Helpline" in P. Selman, ed., supra note 3, pp. 217-231.

(32) For example, the expected payment to a Chinese orphanage when a child is handed over for adoption is US$3,000. The Indian Supreme Court concerned about such abuses set payments at a low level per diem. See Laksmi Pandey v. Union of India, 2 Indian Supreme Court Reports 795 (1984).

(33) UN Declaration on Social and Legal Principles, A/41/898, art. 20.

(34) Euradopt, Ethical Code (1993) arts 20, 21.

(35) ibid., art. 8.

(36) Accredited bodies are approved by the state in which they operate to carry out functions associated with intercountry adoption. See Hague Adoption Convention, arts. 9-13.

(37) Euradopt, art. 11a.

(38) A4-0392/1996, para H.

(39) Intercountry Adoption, Innocenti Digest, No 4 (1998) pp.7-8.

(40) For example, see Committee on the Rights of the Child, Summary record of the 168th Meeting Paraguay.

(41) Hague Convention, art. 32.

(42) Defence for Children International, Independent Intercountry Adoptions (1991). These adoptions are sometimes known as "private" adoptions.

(43) Parra-Aranguren, para. 373.

(44) Hague Convention, art. 22(5); Parra-Aranguren, para. 398.

(45) Gresham's Law (derived from economics) states that bad money (debased coinage) drives out good.

(46) Second Special Commission Report, para. 35.

(47) ibid., para. 41.

(48) ibid., para. 47.

(49) A. Duikerken and H. Geerts, "Awareness Required: the Information and Preparation Course on Intercountry Adoption in the Netherlands" in P. Selman, ed., p. 371.

(50) K. Sterky, "Maintaining Standards: the Role of Euradopt," in P. Selman, ed., p. 398.

(51) G. Andersson, "Intercountry Adoption in Sweden," in P. Selman, ed., p. 355.

(52) Before the Adoption (intercountry aspects) Act 2000, regulation was avoided by making placements outside the UK; for example, in the country of origin, or at an overseas airport, see below n. 57 and accompanying text.

(53) J. Masson, "The 1999 Reform of Intercountry Adoption in the United Kingdom: New solutions and Old Problems," F.L.Q. (2000) p. 221.

(54) M. Brennan, "Creating a Framework: a View from the Centre," in P. Selman, ed., p. 192.

(55) Adoption (Intercountry Aspects) Act 1999, s. 9; Adoption Act 1976, s.1; Adoption of Children bill cl. 2, 106.

(56) Adoption Act 1976, s.11(3A) added by Adoption (Intercountry aspects) Act 1999.

(57) Adoption (Intercountry aspects) Act 1999, s.14.

(58) Hague Convention, arts 4,32.

(59) Hague Convention, articles 4, 29, 32; The Euradopt Ethical Code similarly excludes direct contact between the prospective adopters and the parents; Euradopt, Ethical Code, article 3.

(60) Such meetings are an accepted part of adoption practice in the UK including in contested cases. See M. Ryburn, "Contact after contested adoptions," Adoption and Fostering 14, 4 p. 35; J. Castle, et al., "Infant adoption in England," Adoption and Fostering 24, 4, p. 48.

(61) DCI; Parra-Aranguren Report, para. 495.

(62) Adoption Act 1976, s.57; Adoption and Children bill 2001, cl. 78.

(63) Adoption Act 1976, s. 24(2). This provision is not included in the proposed bill

(64) Adoption Act 1976, s.57(3); Re A. (Adoption Placement) 2 F.L.R. (1988) p. 133; Re MW (adoption: surrogacy) 2 F.L.R. (1995) p. 759.

(65) J. Masson, "The 1999 Reform of Intercountry Adoption in the United Kingdom: New Solutions and Old Problems," F.L.Q. (2000) p. 233.

(66) UN Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption Nationally and Internationally, articles 3 and 4.

(67) UN CRC, art. 21(b).

(68) Euradopt, Ethical Rules, art. 4.

(69) A4-0392/1996 paras. C and G.

(70) Hague Convention, Preamble, paras. 2 and 3.

(71) This was intentional. See Parra-Aranguren, para. 46.

(72) Some young people in state care in the UK prefer residential placements to foster care. See C. Harrison, "Young People, Being in Care and Identity," in J. Masson, et al., Lost and Found (Brookfield, VT: Arena, 1999) pp. 65-103.

(73) Preliminary findings from a longitudinal study of Romanian children adopted in England suggests that those over the age of two at placement had lower cognitive scores and were more likely to show attachment disorder at six years. See M. Rutter, et al., "Recovery and Deficit Following Profound Early Deprivation," in P. Selman, ed., supra note 3, pp. 107-125.

(74) For a discussion of adoption research see J. Triseliotis, J. Shireman, and M. Hundleby, Adoption: Theory, Policy and Practice (London: Cassell, 1997); R. Parker, Adoption: Messages from Research (Chichester: Wiley, 1999); and P. Selman.

(75) A recent study in England found that 90 percent of those inquiring about intercountry adoption decided against an application: C. Harnott, "Developing Services for Intercountry Adoption," in P. Selman, ed., supra note 3, p. 242.

(76) Masson, p. 228.

(77) Andersson; Duinkerken and Gerts; J. Fleming, "Oasis: the Overseas Adoption and Information Service," in P. Selman, ed..

(78) BAAF, Policy Statement on Intercountry Adoption (1998); Department of Health, Guide to Intercountry Adoption Practice and Procedures (1997) para. 2.4.

(79) Harnott; C. Hesslegrave, "The Role of Accredited Bodies in Preparation and Assessment," in P. Selman, ed., pp. 276-289.

(80) Duinkerken and Gerts, p. 374.

(81) New South Wales Law Reform Commission, Research Report No 6, Intercountry Adoption and Parent Support Groups (1996).

(82) Sedfrey Candelaria, personal communication.

(83) Andersson, p. 355; Fleming, p. 236.

(84) A. Damodaran, and N. Mehta, "Child Adoption in India" in P. Selman, ed., p. 411.

(85) Ibid., p. 417.

(86) J.S. Sjoren, "A Ghost in My Own Country," Adoption and Fostering 20, 2 (1996) pp. 32-35; S. Jardine, "In Whose Interests?" in P. Selman, ed., p. 488.

(87) Inter-American Convention on Conflict of Laws Concerning the Adoption of Minors (1984) article 7.

(88) Hague Convention, article 16.

(89) Art. 30(1); Parra-Aranguren, para. 511.

(90) Hague Convention, art. 30(2).

(91) Children Act 1975, s.26. People adopted before 1976 are required to attend counselling before they can access their birth records.

(92) Sterky, p. 403; Andersson, p. 362.

JUDITH MASSON received her BA in law from Cambridge, England in 1975. She went on to earn her PhD in Socio-legal studies in Leicester, England (1981). Currently she is Professor of Law at Warwick University, specializing in child law and socio-legal research. She is co-author of a leading test, Principles of Family Law, and teaches courses on child law an international issues in child law to law students, social workers and doctors. She has undertaken numerous studies on the application of child law, for example on adoption by parents and step-parents: J. Masson et al., Yours, Mine or Ours (1983), the use of wardship proceedings by local authorities to protect children, representation of children in child protection proceedings, and civil litigation by children. Her recent books include Out of Hearing (1999, a research-based account of children's experience of being represented in care proceedings, and Lost and Found (1999). She has just completed a study of the use of police protection, Working in the Dark, and is currently researching Emergency Protection Orders; these projects are jointly funded by the NSPCC and the Nuffield Foundation.
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